Williams, Ch. J.
We cannot look at this case without seeing that entire justice has been done between these parties. The first attaching creditor, who abandoned his lien in compliance with an award which was intended to make him the owner of the goods, and whose debt, according to the award, would have absorbed them, is now, as receipter, in possession of them, and claims a right to hold them under the release from McKee; the plaintiffs having abandoned their lien on the goods, at least for a time, by the withdrawal of their suit. The parties are now placed just where they would have been, had Pitkin’s judgment been obtained from the court, instead of the arbitrators, and Pitkin’s title been consummated, by a purchase of the goods under his execution, instead of a release from McKee; and if an unexpected effect has followed from the acts of each party, which left them precisely where they would have been, without such acts, it will be no cause of regret.
It is, however, the duty of the court, and it will be their object, not to lose sight of the legal rights of the parties, or to deprive either of them of any advantage which the law gives to them. That the act of Pitkin in withdrawing his suit destroyed his lien, cannot be doubted. Why? Because the moment his suit ceased to exist, that moment his lien was dissolved. It did not wait for the termination of the session •, [183]*183but on the day of withdrawal, the plaintiffs had the only incumbrance. When then the plaintiffs withdrew their j->. , . , , i , , . , . Jritkin, it would seem, had the same right to say to them your incumbrance is now removed, and we stand as before.”
But the plaintiffs say, that their suit never was withdrawn: there is no evidence of the fact. It would seem as if the plaintiffs, if this was their claim, should have objected to any parol testimony upon this subject. No such objection having been made, it comes to a question as to the weight of evidence. And here it is urged, that a record imports absolute verity, and nothing can be brought against it; that the evidence adduced proves nothing. The record is, that the plaintiffs recovered a judgment against McKee by default ; and this is conclusive evidence that the suit was not withdrawn.
That a record is conclusive against parties and privies, is among first principles. But it is equally well settled, that strangers are not concluded by it; (Proctor v. Johnson, Salk. 600. S. C. 1 Ld. Raym. 669.) though, as it respects the fact of the judgment, it is evidence against all the world. This record, then, while it is conclusive against McKee that such a debt exists, is, as against other persons, conclusive of the fact that such a judgment was obtained as this record imports, but not conclusive against them of the debt. The defendant in that suit ought, upon any principle, to be precluded from alleging any thing against a judgment he might have resisted and defeated, but which was obtained by his own consent. But this third person has not consented to it; nor could be permitted to be heard against it. When, therefore, it is said, that the act of the court has nullified the act of withdrawal, and that it is as if it never was, we understand this to be true as it respects the parties only ; and if a third person could attack the judgment as to its merits, surely he can shew the process which led to that judgment. It would be absurd to say, that a judgment could not prove the existence of the debt as it respects third persons, and yet that it operated so conclusively as to conceal the arrangement by which it was obtained.
If the effect of a final judgment is such as the plaintiffs claim, then how can it be shewn that an amendment has taken place affecting the rights of third persons? But this has been allowed in this court. Thus, where a suit was [184]*184brought against Hall and Robbins, and Hall’s property was by A, and afterwards was attached by B, in a suit . ^ T1J1, , , , , . .„ . , „ J . ’ , agamst Hall only; and the plaintiff, in the first suit, by leave 0f tjje court) amended his writ, by striking out the name Robbins; it was held, that the rights of the second attaching creditor could not thus be affected. Peck v. Sill, 3 Conn. Rep. 157.
If it be asked here, who shall decide whether the entry of withdrawal shall be erased — this court, or the court before which the suit was, the same question might have been put in that case as to the amendment. If it be said, that this case was subject to the law of this court, the same might be said there. If this judgment of the county court nullified the entry of withdrawal, and placed it as if it never existed, then we see not why the final judgment against Hall did not prove, that the suit was brought against Hall alone ; and if the record of a judgment here against McKee prove that there could have been no withdrawal, we see not why the record there against Hall did not prove that there was no amendment. Neither fact is proved, by the record ; and so long as the courts have the power of permitting amendments or alterations of records, we see no possible reason existing why, in a proper case, one not a party should not be permitted to shew the fact of such alteration. Certainly, we think there is no reason for allowing it, in the one case, and not in the other. In neither case; is the judgment denied, or the record attacked. The fact that the judgment was obtained, stands unimpeached and unimpeachable.
Now, had the clerk in his record given* as he might have done, the real fact that the amendment was allowed, or the erasure ordered, by the court; there would be nothing inconsistent in the record with itself. All would see that the court, in the due exercise of its powers, had, for reasons deemed sufficient, permitted a party who had abandoned the suit, or mistaken his plea, to set himself right in court; and that fact appearing by as high evidence as the final judgment, we cannot doubt that a third person might avail himself of it. It comes then to a question whether parol evidence of a fact not inconsistent with the record, can be given, by a person not a party to that record.
In the above cited case of Peck v. Sill, the court held, that [185]*185isuch evidence was proper, being the best which could be obtained ; and, for the same reason, it should be admitted this CctSG.
That there may be cases, in which parol evidence that a suit was withdrawn, may be given, cannot admit of a doubt. Suppose a plaintiff had agreed to withdraw a suit, upon a given day, and had done it; might he not prove this, by parol? We know not how else it could be proved ; for by our practice, it never becomes a matter of record. The clerk makes an entry of it in his docket, and there it is left; and no record is made in relation to it. The best evidence, then, is the recollection of witnesses, accompanied with a memorandum of the proper officer that such was the fact; and there is nothing in the opinion of this court in Davidson v. Murphy, 13 Conn. Rep. 213. which contradicts this. We there held, that such minutes did not constitute a record: and for that very reason, we hold that parol proof is admissible, of which this entry of the clerk may form a part.
Suppose the body of McKee
Free access — add to your briefcase to read the full text and ask questions with AI
Williams, Ch. J.
We cannot look at this case without seeing that entire justice has been done between these parties. The first attaching creditor, who abandoned his lien in compliance with an award which was intended to make him the owner of the goods, and whose debt, according to the award, would have absorbed them, is now, as receipter, in possession of them, and claims a right to hold them under the release from McKee; the plaintiffs having abandoned their lien on the goods, at least for a time, by the withdrawal of their suit. The parties are now placed just where they would have been, had Pitkin’s judgment been obtained from the court, instead of the arbitrators, and Pitkin’s title been consummated, by a purchase of the goods under his execution, instead of a release from McKee; and if an unexpected effect has followed from the acts of each party, which left them precisely where they would have been, without such acts, it will be no cause of regret.
It is, however, the duty of the court, and it will be their object, not to lose sight of the legal rights of the parties, or to deprive either of them of any advantage which the law gives to them. That the act of Pitkin in withdrawing his suit destroyed his lien, cannot be doubted. Why? Because the moment his suit ceased to exist, that moment his lien was dissolved. It did not wait for the termination of the session •, [183]*183but on the day of withdrawal, the plaintiffs had the only incumbrance. When then the plaintiffs withdrew their j->. , . , , i , , . , . Jritkin, it would seem, had the same right to say to them your incumbrance is now removed, and we stand as before.”
But the plaintiffs say, that their suit never was withdrawn: there is no evidence of the fact. It would seem as if the plaintiffs, if this was their claim, should have objected to any parol testimony upon this subject. No such objection having been made, it comes to a question as to the weight of evidence. And here it is urged, that a record imports absolute verity, and nothing can be brought against it; that the evidence adduced proves nothing. The record is, that the plaintiffs recovered a judgment against McKee by default ; and this is conclusive evidence that the suit was not withdrawn.
That a record is conclusive against parties and privies, is among first principles. But it is equally well settled, that strangers are not concluded by it; (Proctor v. Johnson, Salk. 600. S. C. 1 Ld. Raym. 669.) though, as it respects the fact of the judgment, it is evidence against all the world. This record, then, while it is conclusive against McKee that such a debt exists, is, as against other persons, conclusive of the fact that such a judgment was obtained as this record imports, but not conclusive against them of the debt. The defendant in that suit ought, upon any principle, to be precluded from alleging any thing against a judgment he might have resisted and defeated, but which was obtained by his own consent. But this third person has not consented to it; nor could be permitted to be heard against it. When, therefore, it is said, that the act of the court has nullified the act of withdrawal, and that it is as if it never was, we understand this to be true as it respects the parties only ; and if a third person could attack the judgment as to its merits, surely he can shew the process which led to that judgment. It would be absurd to say, that a judgment could not prove the existence of the debt as it respects third persons, and yet that it operated so conclusively as to conceal the arrangement by which it was obtained.
If the effect of a final judgment is such as the plaintiffs claim, then how can it be shewn that an amendment has taken place affecting the rights of third persons? But this has been allowed in this court. Thus, where a suit was [184]*184brought against Hall and Robbins, and Hall’s property was by A, and afterwards was attached by B, in a suit . ^ T1J1, , , , , . .„ . , „ J . ’ , agamst Hall only; and the plaintiff, in the first suit, by leave 0f tjje court) amended his writ, by striking out the name Robbins; it was held, that the rights of the second attaching creditor could not thus be affected. Peck v. Sill, 3 Conn. Rep. 157.
If it be asked here, who shall decide whether the entry of withdrawal shall be erased — this court, or the court before which the suit was, the same question might have been put in that case as to the amendment. If it be said, that this case was subject to the law of this court, the same might be said there. If this judgment of the county court nullified the entry of withdrawal, and placed it as if it never existed, then we see not why the final judgment against Hall did not prove, that the suit was brought against Hall alone ; and if the record of a judgment here against McKee prove that there could have been no withdrawal, we see not why the record there against Hall did not prove that there was no amendment. Neither fact is proved, by the record ; and so long as the courts have the power of permitting amendments or alterations of records, we see no possible reason existing why, in a proper case, one not a party should not be permitted to shew the fact of such alteration. Certainly, we think there is no reason for allowing it, in the one case, and not in the other. In neither case; is the judgment denied, or the record attacked. The fact that the judgment was obtained, stands unimpeached and unimpeachable.
Now, had the clerk in his record given* as he might have done, the real fact that the amendment was allowed, or the erasure ordered, by the court; there would be nothing inconsistent in the record with itself. All would see that the court, in the due exercise of its powers, had, for reasons deemed sufficient, permitted a party who had abandoned the suit, or mistaken his plea, to set himself right in court; and that fact appearing by as high evidence as the final judgment, we cannot doubt that a third person might avail himself of it. It comes then to a question whether parol evidence of a fact not inconsistent with the record, can be given, by a person not a party to that record.
In the above cited case of Peck v. Sill, the court held, that [185]*185isuch evidence was proper, being the best which could be obtained ; and, for the same reason, it should be admitted this CctSG.
That there may be cases, in which parol evidence that a suit was withdrawn, may be given, cannot admit of a doubt. Suppose a plaintiff had agreed to withdraw a suit, upon a given day, and had done it; might he not prove this, by parol? We know not how else it could be proved ; for by our practice, it never becomes a matter of record. The clerk makes an entry of it in his docket, and there it is left; and no record is made in relation to it. The best evidence, then, is the recollection of witnesses, accompanied with a memorandum of the proper officer that such was the fact; and there is nothing in the opinion of this court in Davidson v. Murphy, 13 Conn. Rep. 213. which contradicts this. We there held, that such minutes did not constitute a record: and for that very reason, we hold that parol proof is admissible, of which this entry of the clerk may form a part.
Suppose the body of McKee had been in custody on this suit, and the sheriff, after this withdrawal, had liberated him ; or suppose this officer had delivered up the goods to the owner; could not the fact of the withdrawal be proved, by parol? We understand that this is admitted. There is then nothing in the nature of the proof, that forbids it. If it be a fact against the record, which no number of witnesses can prove, then it is no more capable of proof, in that case than in this. And if, on the contrary, it is admissible for that purpose, the difficulty, as it respects the record, is overcome, and the only question is, whether the nature of the defendant’s case demands it. On this point, it is enough to say, that if the proof is, in its nature admissible, and when admitted, is sufficient, we see not why any third person, whose legal rights may be affected by it, is not entitled to the benefit of it.
It has been compared to the case of bail, who cannot plead the surrender of the principal, unless a record be made of the fact. This would prove too much ; as here a withdrawal is not a matter of record. Besides, in that case, we are told, that the end of the bail is not only to bring the body, but that he come subject to the court, according to the meaning of the bail. Wickstead v. Bradshaw, Hob. 116. It has also been compared to the case of a judgment on demurrer, where a [186]*186party may amend or appeal during the term ; where the lien ^ . * , », . . , .r continues. In such a case, as well as a non-suit by order ot ' . . court,, there is no voluntary act on the part ot the plaintin. He submits to the order of the. court; and to hold that a judgment deprives him of his lien, would be, in effect, in many cases, to deprive him of all benefit of his appeal. • Here, the court held, and, we think, correctly, that the intentional withdrawal of a suit, without any mistake, of itself discharged the lien; and being once discharged, it can no more be revived, than the right to retake the body of a prisoner, which has once been given up.
It is said again, that when a suit is withdrawn, it is known to be subject to be revived at the order of the court. Would it then be claimed, that if a debtor was in gaol upon an attachment, and the suit was withdrawn the first day of the term, the officer would be justified in detaining him for twenty or thirty days, during the session of the court, because it was possible that the cause might be revived? We think not. And if the party so detained once had a cause of action, and brought his suit, we know of no principle, by which that suit could be defeated in consequence of the act of third persons. Thé lien under which the plaintiff claims, is given to him as the reward of legal diligence. It may, of course, be waived by him ; and when he intentionally, deliberately withdraws his suit,, he, of course, must be supposed to intend to waive .the benefit of his attachment. Having once done this, we know of no remedy in the power of the court, which can revive the lien and thereby affect the rights of persons not before the court; much less, when the act of the court is founded upon the assent of parties, whose interest may be entirely at variance with the rights of others to be affected by it.
We say nothing of cases of mere mistake; nor do we give any opinion how it might be, were it our. practice, as it is in some courts, that a record be made of the withdrawal of a suit. This is a case where the suit was intentionally withdrawn ; and in such a case, the necessary result is, that the lien is terminated ; such at least is the opinion óf a majority of the court.
It has also been claimed, that the declaration of Mr. Perkins, the attorney of McKee, ought not to have been received, [187]*187in evidence. A sufficient answer to- that would be, that it was not objected to below. But had it been, we see no ground upon which it could be sustained. The attorney the plaintiff finds the suit withdrawn. The defendant’s attor-' ney informs hint under what circumstances it was done, and by whose authority. This he acquiesces in, for nearly a fortnight, without objection ; and then the plaintiffs’ agent advises with their attorney whether it could not be revived ; and without any claim of mistake or want of authority for the act. Surely, the declaration of Mr. Perkins as to the authority under which it was done, accompanied by. the subsequent conduct of the party, is proper evidence to show that the withdrawal was properly made ; and it was not only proper evidence, but we think, very satisfactory evidence of the fact. For some' reason or other, (it is not very clearly proved wherefore,) Carpenter, the plaintiffs’ agent, was very solicitous to have the suit of the plaintiffs against McKee withdrawn. The attorney is sought and cannot be found. And so anxious is he to have it done forthwith, that he procures the defendant’s attorney to do it. As soon as the plaintiffs’ attorney appears,, the transaction is very properly explained to him; he acquiesces in it; and, by the consent of all concerned, the-suit remains as dead from the 6th to the 19th day of the term. Then there is no complaint that this has been done hastily, unintentionally or wrongfully ; but for some unassigned reason, the plaintiffs’ agent consults their attorney, not on the question whether a mistake can be corrected, but whether this cause, now dead, can be revived ; and he thinks it can be, if the defendant in the cause will consent; and the defendant’s consent is procured.
But it is said, that no act or vote of the corporation is shown; nor is there 'any witness to the fact that this was done by the Corporation, or by its authority. It is now quite too late to question the acts of a corporation/because a vote and seal are not shewn, since the decisions in our own courts and the courts of the United, States. Besides, corporations, by our law, are expressly authorized to appear and defend suits, by their agent or attorney. In this case, the agent and attorney both concurred in this act of withdrawal. Their act, therefore, must be considered as the act of the corporation ;■ and we know not for what reason the corporation [188]*188should now, without any evidence, be permitted to disavow. act of the agent and attorney, more than any individual.
It is also urged, that it was not proved, that any communication on the subject was made to the court. When the defendant’s attorney informed the opposite counsel that the suit was withdrawn; when the clerk made an entry to that effect; and when application, many days after, was made, to, the court to restore the cause, without a hint but that what had been done, had been regularly done.; it would be most extraordinary for the court, now, to presume, that when the cause was agreed on all hands to be withdrawn, it was not regularly done ; or that the party who had submitted to go and ask the court to restore the cause, upon consent of the opposite party, should now ask this court to presume it never was withdrawn. If the evidence of a withdrawal was admissible, there surely can be no possible doubt that it was sufficient to prove the fact.
As to the effect of the discharge to McKee and his admissibility as a witness, it is a question of some nicety ; and as the decision of it is not necessary to terminate this case, we shall not examine it further.
We think that no cause for a new trial is shewn.
In this opinion Church, Waite and Storrs, Js. concurred.
Sherman, J., after much hesitation, acquiesced in the decision.
New trial not to be granted.